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JOHN B. CORDOVA, SR.

CHAIRMAN DISTRICT 2

J.E. CHOSTNER
COMMISSIONER DISTRICT 3

ANTHONY NUÑEZ
CHAIR PRO TEM DISTRICT 1

KIM B. HEADLEY
DIRECTOR

planning@co.pueblo.co.us

MEMORANDUM TO: FROM: DATE: SUBJECT: Pueblo County Planning Commission Jeffrey Woeber, Planner II February 14, 2010 Colorado Clean Energy Park Planned Unit Development No. 2011-001 Puebloans for Energizing Our Community, LLC (PFEOC) (Applicant) Donald Banner (Consultant, PFEOC Representative)

I

GENERAL INTRODUCTORY The Phased Planned Unit Development (PUD) proposal set forth by the applicant does not follow a traditional land use planning approach. The applicant is requesting approval of a PUD and vesting of development rights on the basis of a very vague description of land use activities and without detailed descriptions and studies of proposed infrastructure improvements and the impacts of such a project. To say Planning Staff is uncomfortable with the proposal and approach would be an understatement. That said, Staff acknowledges this is a very unique project. Every aspect of the nuclear facilities proposed in this development will be heavily regulated by the Nuclear Regulatory Commission (NRC). Based upon the information submitted by the applicant, the investigations to determine suitability of the site and water supply for a nuclear power plant and various other power generation facilities is estimated to take thirty (30) months and cost 5 to 8 million dollars. The applicant states, “Assuming the land and water are suitable for construction of a nuclear power plant the developer will spend another 100 million ($100M) in complying with the regulatory requirements of the Nuclear Regulatory Commission.” It is estimated it will take a minimum of two years to develop the detailed plans to submit to the County and the NRC if it is determined the site is suitable. The applicant’s development plan (attached as Exhibit 1) proposes a three phased approach to the Project with this PUD being the first. The applicant proposes deferring submittal of various application materials to Phase II. With the Phase II submittal, the applicant proposes a hearing before the Board of County Commissioners, “…to determine the acceptability of the proposed location of the proposed energy generating, storage

MEMORANDUM TO PUEBLO COUNTY PLANNING COMMISSION RE: COLORADO CLEAN ENERGY PARK PUD NO. 2011-001 PAGE 2 OF 48

and support improvements, and the infrastructure necessary to provide access to them. The County Commissioners shall not receive evidence or make a further determination about the proposed uses of the property; their determination shall be limited to whether or not the improvement locations and infrastructure providing access to those improvements are acceptable to the County. During this Phase 2 determination will be made by the applicant as to what clean energy sources should be built on the property and Applicant will pay an application fee reimbursing the Pueblo County Planning and Development office its costs.” Staff is proposing conditions of approval that are not entirely consistent with the applicant’s proposal. Beginning on Page 10 below, these conditions recommend first, that with the Phase II submittal, Final Development Plans must be submitted for review and approval by the Board of County Commissioners, consistent with the Submittal Requirements within Section 17.126.040 of the PUD Regulations in the Pueblo County Code. Although the use itself would be allowable per an approved PUD, these Plans would allow the County to review each proposed facility (e.g. nuclear, wind, solar) within a defined area, in order to determine suitability, appropriateness, and impacts of the allowable use on a specific site. Further, staff recommends the applicant not only pay an application fee reimbursing the County for its costs for Phase II, but also for the costs associated with this first phase. (See Staff Recommendation, below.) PURPOSE Applicant requests approval of a planned unit development (PUD) on approximately 24,000 acres of property that is currently within an A-1, Agricultural Zone District. The application submittal documents are attached as Exhibit 1. The Colorado Clean Energy Park PUD would allow various types of energy/power production facilities, excluding coalfired power plants. This includes, but is not limited to, nuclear, solar, wind, gas, and geothermal electrical generating facilities, as well as associated energy storage, support facilities, and infrastructure. The PUD also provides for land to be used for a buffer/open space. With this application, the applicant requests the following: • • • Approval of the application of a Planned Unit Development for the land involved including phasing in accordance with the Submitted Development Plan. Approve the submitted Development Plan which includes certain deferrals, variances, and waivers as set forth therein. Determine that there is a vested real property right to develop the land included in the Colorado Clean Energy Park in accordance with the Development Plan, contingent only on compliance with the Development Plan.

(Note: The application materials request deferral of the applicant’s amendment to the Comprehensive Plan. The applicant has subsequently submitted an application to amend the Comprehensive Plan, CPA No. 2011-001). The applicant requests approval of the Colorado Clean Energy Park PUD with the following deferrals, variances, and waivers of requirements within the Pueblo County Code, for the application submittal for the Colorado Clean Energy Park PUD:

MEMORANDUM TO PUEBLO COUNTY PLANNING COMMISSION RE: COLORADO CLEAN ENERGY PARK PUD NO. 2011-001 PAGE 3 OF 48

1. Variance of Section 17.126.040, Submittal Requirements, to allow deferral to the first 24 months of Phase II of the submission of i) those parts of the Development Plan Submittal Requirements set forth in 17.126.040 B. 1. d. through m., the map anticipated in said submittal requirements, and ii) Submittal Requirements set forth in 17.126.040 C. 2. and 3 and the map anticipated in said submittal requirements. 2. Variance of Section 17.128.060 to reduce cost upon filing the PUD Application to $100.00 and defer payment of other costs and fees as provided in Paragraph I, Phase II (of the applicant’s submittal). 3. Include within Permitted Uses within Section 17.126.020 all forms of energy production and storage and support facilities with the exception of coal-fired electric plants. 4. Modification of Design Standards set forth in Section 17.126.130 for all site, design, construction, or other applicable requirements to comply with design, construction, or other applicable requirements to comply with Federal law and regulations dealing with the site location, design, and construction of nuclear power plants. 5. Variance for maximum height of structures as set forth in Section 17.126.030 D. to allow structures to be 300 feet in height to accommodate a containment dome for nuclear power plants and 350 feet in height for wind towers and communications towers. 6. Variance for noise standard to be no more than 55 decibels of noise within 3,000 feet of any structure not related to wind generation. 7. Variance of Section 17.126.150 to allow the property to revert back to its zoning as of the PUD Application associated with the PUD Development Plan if a) at the conclusion of Phase I it is determined that the land is not suitable for clean energy production as determined by the Applicant or b) at the conclusion of Phase 2 of the PUD, the Nuclear Regulatory Commission fails to issue a Permit for construction of a nuclear power plant. 8. Variance of duration of Approval as set forth in Section 17.128.040 to provide that if Phase I is completed within thirty months of approval, Phase II may be completed within seventy-two months (six years) of approval. Phase III may be completed within one hundred thirty two months (eleven years) of approval. 9. Variance of Section 17.126.040 to accept the submittals set forth in Paragraph IV hereof and attached to the Development Plan as satisfying the Submittal Requirements sufficient to proceed with the Application. 10.There are five parcels of land surrounded by the land included in the Colorado Clean Energy Park. Three are owned by the United States government and two are owned privately. The Applicant is in contact with these owners and hopes to acquire these parcels and add them to the legal description in the future. The United States government has indicated that this process could take over a year to complete.

MEMORANDUM TO PUEBLO COUNTY PLANNING COMMISSION RE: COLORADO CLEAN ENERGY PARK PUD NO. 2011-001 PAGE 4 OF 48

LOCATION The Energy Park site is 24,000± acres in size, located in eastern Pueblo County as shown below:

The site is located generally south of Grape Rd., east of Huerfano Rd. in eastern Pueblo County, situated within Sections 34, 35, and 36, Township 21 South, Range 62 West of the 6th P.M., Sections 31 and 32, Township 21 South, Range 61 West of the 6th P.M., Sections 1, 2, 3, 9, 10, 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, Township 22 South, Range 62 West of the 6th P.M., Sections 4, 5, 6, 7, 8, 9, 16, 17, 18, 19, 20, 21, 22, 27, 28, 29, 30, Township 22 South, Range 61 West of the 6th P.M., Pueblo County. The complete legal description of the property is within the applicant’s submittal materials, attached as Exhibit 1. (See also Exhibit 2.) DISCUSSION The proposal involves establishing various electrical energy generating facilities, “including but not limited to wind, solar, geothermal, nuclear, gas and other forms of electrical energy production and energy storage and support facilities.” Coal-fired electrical generation is specifically prohibited. A 700 acre site would be designated for the nuclear facility, 4000 + acres would be used as a buffer zone around the site, with

MEMORANDUM TO PUEBLO COUNTY PLANNING COMMISSION RE: COLORADO CLEAN ENERGY PARK PUD NO. 2011-001 PAGE 5 OF 48

the remaining area available for wind, solar and other electrical generating facilities as well as energy storage and support facilities. The owners of the property have provided letters of consent (Mary Frazier Clark, 21,444 ± acres, with the remainder of the 24,000 acres owned by Delbert L. Fountain, Patrick Henry Fountain, and Joyce A. Fountain). The project is proposed to be developed in three phases. Phase I, the “Preliminary Investigative Phase,” would begin upon approval of the Planned Unit Development (PUD). The first phase PUD application requests numerous waivers and deferrals of required application materials, as explained above. Phase I involves suitability studies for the facilities and site location for planned facilities. Phase II is the “Nuclear Regulatory Commission (NRC) Compliance” Phase, in which the applicant would also submit PUD application materials to Pueblo County that were deferred within Phase I, including defining areas for the facilities and infrastructure planned for the project. The Consultant would apply for required permits from the NRC, and specific plans for infrastructure and facilities would be drafted. Upon approval by the NRC, the project would move into Phase III, the Construction Phase. Staff’s interpretation of the applicant’s timing of the Project is as follows: • Phase I to begin upon approval of the PUD (“Start Date”). • Phase II to begin within 30 months of Start Date. • Within 24 months after beginning Phase II (54 months from Start Date), applicant will submit all submittal materials to Pueblo County that were initially deferred. • Within 72 months of Start Date, Phase II is to be completed. Completion being review of deferred submittal materials, as well as review and approval of all other required local, State, and federal permits, including an NRC Permit for the nuclear facilities. • Phase III, construction phase, to begin within 132 months of Start Date. The applicant is essentially asking for County approval of a rezoning of the site to allow a Planned Unit Development to vest a property right to establish the Energy Park use, with site specific review and analysis to occur after approval of the rezoning. The applicant notes, with regard to deferring review materials that would be typically be submitted with a PUD application, “The Applicant has used the terminology ‘waivers’ to coincide with the language of the County regulations, but in this Development Plan no ‘waiver’ is being requested, merely deferral of certain regulatory submittals until it is determined that the project can move forward and variances that would allow construction of the components needed in a nuclear power plant.” At this point in the process, the PUD would be a blanket approval for the proposed uses within the 24,000± acre site, with the specific location of facilities and infrastructure within this 37.5 square mile area being identified after the approval, with the applicant’s “Phase 1 Preliminary Investigative Phase.” The applicant would, during Phase I, perform the following three steps: 1. Conduct land studies and water studies to determine if the proposed Energy Park and available water are suitable for energy production and the support facilities necessary for the Permitted Uses (that are proposed).

MEMORANDUM TO PUEBLO COUNTY PLANNING COMMISSION RE: COLORADO CLEAN ENERGY PARK PUD NO. 2011-001 PAGE 6 OF 48

2. Identify a specific site for the location of a nuclear power plant and its related buffer zone. 3. Identify specific sites for the location of a wind farm and solar fields. There is little analysis or review that can be performed by staff until this investigative phase is completed. In addition to the applicant’s proposed deferrals, variances, and waivers of requirements as described above, the materials proposed to be waived or deferred with this PUD Application submittal will preclude staff’s, the Pueblo County Planning Commission’s, and the Board of County Commissioners’ ability to review this first phase of the Project for compliance or consistency with many of the standards and requirements within the following Sections of Chapter 17.126, Planned Unit Development District (PUD) of the Pueblo County Code: • • • • • • • • • Section Section Section Section Section Section Section Section Section 17.126.010, 17.126.030, 17.126.080, 17.126.090, 17.126.100, 17.126.110, 17.126.120, 17.126.130, 17.126.140, Purpose Development Requirements Maintenance Plan Off-Street Parking Advertising Devices Landscaping Provisions for Public Facilities and Services Design Standards Consideration for Rezoning

As described in the application materials, and shown on the map attached as Exhibit 2, there are five parcels “surrounded by the land included in the Colorado Clean Energy Park (PUD). Three are owned by the United States government and two are owned privately. The Applicant is in contact with these owners and hopes to acquire these parcels and add them to the legal description in the future.” These parcels are excluded from the PUD at this time, and with approval of the PUD, they would remain zoned A-1, Agricultural. DISCUSSION: APPLICANT’S DEFERRALS, VARIANCES, WAIVER REQUESTS Below are the applicant’s deferral and waiver requests, with staff comments (in bolded text) below each. Note that there is a recommendation for each of the applicant’s requests under Staff Recommendation, separate from this discussion. 1. Variance of Section 17.126.040, Submittal Requirements, to allow deferral to the first 24 months of Phase II of the submission of i) those parts of the Development Plan Submittal Requirements set forth in 17.126.040 B. 1. d. through m., the map anticipated in said submittal requirements, and ii) Submittal Requirements set forth in 17.126.040 C. 2. and 3 and the map anticipated in said submittal requirements.
Typically, and as required by Pueblo County’s PUD Regulations, a PUD requires the following (from the Pueblo County Code, Section 17.126.040 Submittal Requirements): B. An applicant for zoning or rezoning to a Planned Unit Development District shall submit the following information: 1. Development Plan conforming to the following requirements. A Development Plan shall

MEMORANDUM TO PUEBLO COUNTY PLANNING COMMISSION RE: COLORADO CLEAN ENERGY PARK PUD NO. 2011-001 PAGE 7 OF 48

accompany a zoning or rezoning application to a PUD District. Said Plan shall be no larger than 24" x 36" and shall contain the following information: a. Title or name of the development above the term "Development Plan"; b. Vicinity Map, scale, north arrow and date of preparation; c. Complete legal description of the property to be included in the PUD; d. Certification statements to include: i. Certificate of Ownership; ii. Certification of Approval by the Board of County Commissioners; iii. Certification of the Planning Director; iv. Certification by the County Clerk and Recorder; e. Land Use(s) for each area included in the plan and corresponding land area; f. Existing and Proposed public and private easements and drainage ways; g. Heights of buildings and structures and proposed locations of buildings and structures, traffic circulation and parking; h. Density of residential development. If densities vary within the development, each density shall be depicted; i. Commercial/Industrial square footage; j. Proposed Roadways from collector status and graded by functional classification with right-of-way widths depicted; k. Buffering and screening including type from surrounding properties; l. Size, type of general location of proposed public sites, open space and recreational areas; m. If facilities are proposed that are not normally maintained by public entities a statement indicating the type of maintenance mechanism proposed. Specific required information on the Development Plan may be omitted when considered not applicable by the Director of the Planning Department and, conversely, additional information may be required as part of a Development Plan when considered applicable by the Director of the Planning Department. The approved Development Plan to be recorded shall be submitted at a size of 24" x 36" and shall be drawn with permanent India ink or produced by a photographic process on a polyester (mylar) film suitable for reproducing and recordation according to the then existing standards of the Pueblo County Clerk and Recorder. As discussed above, the details required within these Submittal Requirements will be largely unknown until the applicant performs analysis of the site to determine which of the proposed uses would be in what locations. As a recommended condition of approval of the PUD, the applicant would be required to submit a “Final” Development Plan or Plans which depicts specific locations and details of each use as listed in Section 17.126.040. Each Final Development Plan will require review by Planning staff and the Planning Commission, and approval by the Board of County Commissioners.

2. Variance of Section 17.128.060 to reduce cost upon filing the PUD Application to $100.00 and defer payment of other costs and fees as provided in Paragraph I, Phase II of the applicant’s submittal.
Staff has recommended the applicant pay all costs associated with review of this PUD application, whether or not the Project moves into Phase II (see Staff Recommendation, below). There is a fee structure for PUDs in place, which could result in a fee of approximately $720,000.00 if all 24,000 acres was deemed “Industrial.” The applicant proposes that a “partial” fee of $10,000.00 would be submitted in conjunction with submittal of Phase II information and that, “A final fee will be determined and paid prior to the completion of Phase 2 as specific areas of industrial and commercial space needed are determined.” However, staff is recommending the County impose an application fee where the applicant shall pay all direct costs associated with review of

MEMORANDUM TO PUEBLO COUNTY PLANNING COMMISSION RE: COLORADO CLEAN ENERGY PARK PUD NO. 2011-001 PAGE 8 OF 48

the application. This is similar to how application fees are applied to 1041 Permit applications, where the applicant will pay “an amount necessary to cover costs of reviewing and processing the application, including costs of copying, mailings, publications, labor, overhead and retention of consultants, experts and attorneys that the County deems necessary to advise it on the application package.” Staff acknowledges this is a unique proposal and the acreage of various land use categories cannot be determined at this point in time. However, it is fair that required application fees completely reimburse Pueblo County for all costs associated with review of this Project.

3. Include within Permitted Uses within Section 17.126.020 all forms of energy production and storage and support facilities with the exception of coal-fired electric plants.
Section 17.126.020, Permitted Uses does allow “residential, commercial, and industrial uses as depicted on the development plan as approved by the Board of County Commissioners,” with a list of exceptions. Power plants or electrical generation facilities are not prohibited or excluded by this Section. That said, “Hazardous Waste Industrial Overlay Uses” as described in Chapter 17.80, Hazardous Waste Industrial Overlay District (I-4) does list “Hazardous Waste Storage Facility,” which is prohibited under Section 17.126.020. Although there would be some nuclear waste material associated with a nuclear power facility, it is staff’s opinion that such waste material must be removed and not be stored in any onsite facility.

4. Modification of Design Standards set forth in Section 17.126.130 for all site, design, construction, or other applicable requirements to comply with design, construction, or other applicable requirements to comply with Federal law and regulations dealing with the site location, design, and construction of nuclear power plants.
The design of a nuclear plant and related facilities would require conformance to federal laws and regulations. Staff notes that design of certain other aspects of development within the 24,000 acre Energy Park, including, but not limited to, open space, circulation, drainage, buffering and screening, and transportation and drainage improvements, may require conformance to Section 17.126.130 if not specifically covered by and preempted by federal regulations. The scope of the federal laws and regulations, and the scope and level of preemption, is unknown at this time.

5. Variance for maximum height of structures as set forth in Section 17.126.030 D. (buildings/structures shall not exceed 60 feet in height, telecommunications towers may be permitted to a height of 200 feet, at the discretion of the BOCC) to allow structures to be 300 feet in height to accommodate a containment dome for nuclear power plants and 350 feet in height for wind towers and communications towers.
After discussion with the applicant’s representative, rather than the 300 foot limitation, this variance request would be to exceed the 60 foot limitation at whatever height is adequate for a nuclear facility as determined by engineering design for such a facility. The 350 foot height request for wind towers and communications towers would be more than adequate, although staff notes these types of towers may be subject to additional permitting or review. In other words, wind towers or a wind farm would not be subject to federal/NRC review (as would the nuclear facility) and would be subject

MEMORANDUM TO PUEBLO COUNTY PLANNING COMMISSION RE: COLORADO CLEAN ENERGY PARK PUD NO. 2011-001 PAGE 9 OF 48

to review and approval of a 1041 Permit. Height requirements would be addressed further in review of a 1041 application.

6. Variance for noise standard to be no more than 55 decibels of noise within 3,000 feet of any structure not related to wind generation.
There is no noise standard, per se, in the PUD Regulations or the County Zoning regulations. However, with any required Final Development Plan or 1041 Permit review, noise standards may be addressed and restrictions imposed.

7. Variance of Section 17.126.150 to allow the property to revert back to its zoning as of the PUD Application associated with the PUD Development Plan if a) at the conclusion of Phase I it is determined that the land is not suitable for clean energy production as determined by the Applicant or b) at the conclusion of Phase 2 of the PUD, the Nuclear Regulatory Commission fails to issue a Permit for construction of a nuclear power plant.
Section 17.126.150 of the Pueblo County Code reads as follows:
17.126.150 Effect of Approval. Upon approval of a rezoning to the PUD District by the Board of County Commissioners the development plan shall be the controlling document, establishing land use(s), densities, setbacks, height limits, lot coverage, and access points. Said development plan shall be recorded in the Clerk & Recorder’s Office of Pueblo County, Colorado, in conjunction with the Board of County Commissioners’ approval Resolution establishing said zone. Said zoning and development plan shall be binding on the owner-applicant, his heirs, successors, and assigns.

Staff agrees with the applicant’s recommendation, where the PUD site would revert back to the existing A-1, Agricultural zoning if it is determined the site is not suitable, or if the NRC fails to issue a Permit for the nuclear facility.

8. Variance of duration of Approval as set forth in Section 17.128.040 to provide that if Phase I is completed within thirty months of approval, Phase II may be completed within seventy-two months (six years) of approval. Phase III may be completed within one hundred thirty two months (eleven years) of approval.
Section 17.128.040 of the Pueblo County Code , under Vested Property Rights, reads as follows:
17.128.040 Approval--Effective Date--Amendments. A site specific development plan shall be deemed approved upon the effective date of the final Board of County Commissioner’s action approving such plan. In the event amendments to a site specific development plan are approved, the effective date of such amendments, for purposes of duration of a vested property right, shall be the date of the approval of the original site specific development plan, unless the Board of County Commissioners specifically finds to the contrary and incorporates such findings in its approval of the amendment. Pueblo County is authorized, but shall not be required to extend vested property rights for a period exceeding three years where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of the development, economic cycles and market conditions and the like.

Staff is recommending, as a condition of approval, the applicant’s phasing timeframe.

MEMORANDUM TO PUEBLO COUNTY PLANNING COMMISSION RE: COLORADO CLEAN ENERGY PARK PUD NO. 2011-001 PAGE 10 OF 48

9. Variance of Section 17.126.040 to accept the submittals set forth in Paragraph IV hereof and attached to the Development Plan as satisfying the Submittal Requirements sufficient to proceed with the Application.
The requirements within Section 17.126.040, Submittal Requirements, would be mostly deferred in the applicant’s application proposal. Staff will recommend the BOCC accept the submittal as proposed, subject to the conditions of approval which require additional submittal materials be submitted in the future. The deferred submittal would be subject to review and approval prior to any actual development of the site. The applicant has also included, within the “Deferrals, variances and waivers” request, the fact that there are five parcels surrounded by the Energy Park lands. The applicant notes “The Applicant is in contact with these owners and hopes to acquire these parcels and add them to the legal description in the future.” At this time, the parcels are excluded from the PUD and would remain in the current A-1, Agricultural Zone District. If, at some point in the future these parcels are to be included within an approved PUD, an amendment to the PUD would be required, subject to review and approval by the Board of County Commissioners.

STAFF RECOMMENDATION If the Planning Commission should vote to forward a recommendation of approval of the Colorado Clean Energy Park Planned Unit Development (PUD No. 2011-001) to the Board of County Commissioners, staff recommends including the following recommended conditions of approval: 1. The Development Plan for PUD 2011-001 shall vest the right to develop the subject property (as described in the legal description within the application submittal for PUD 2011-001) with the following uses: a) Electrical energy generating facilities including those powered by nuclear, wind, solar, geothermal, or gas. b) Energy storage facilities, support facilities for the electrical energy generation, infrastructure associated with electrical energy generation facilities. c) Open space and buffer zone areas. d) The following uses are prohibited: (i) Coal-fired power generation. (ii) Hazardous Waste Storage Facility for storage of nuclear waste or other hazardous waste. The conferring of a vested right and/or the act of vesting shall not in any manner modify, amend, lessen or expand or change in any manner the right to develop the subject property; the right shall continue to be a conditional right subject to full compliance with all conditions of this approval and shall continue to be subject to required further approvals of the Board of County Commissioners as is set forth herein. 2. No development or establishment of the uses allowed under Condition of Approval No. 1 (above) shall be permitted until review by the Pueblo County Planning Commission (as applicable), and review and approval by the Pueblo Board of County Commissioners, of the following:

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a) A Final Development Plan or Plans, in accordance with the requirements and standards within Chapter17.126, Planned Unit Development District of the Pueblo County Code. These requirements include, but are not limited to: • Section 17.126.030, Development Requirements. The height restrictions within Subsection 17.126.030 (60 feet maximum height for buildings or structures and 200 feet in height for telecommunications towers) may be exceeded if a component or structure is associated with a nuclear facility, if that facility is included in an approved Permit issued by the Nuclear Regulatory Commission (NRC). Section 17.126.040, Submittal Requirements. Section 17.126.060, Platting, as applicable. Section 17.126.070, Plot Plan. Section 17.126.080, Maintenance Plan. Section 17.126.090, Off-Street Parking. Section 17.126.100, Advertising Devices. Section 17.126.110, Landscaping. Section 17.126.120, Provisions for Public Facilities and Services. Section 17.126.130, Design Standards. Design Standards for a nuclear facility, if that facility is included in an approved Permit issued by the Nuclear Regulatory Commission (NRC), may deviate from those within Section 17.126.130. Uses or standards that do not fall under an NRC Permit shall comply with the Standards within Section 17.126.130, as applicable. Section 17.126.140, Consideration for Rezoning. Applicant shall submit information and materials sufficient for the Planning Commission and the Board of County Commissioners to consider the ten criteria within Section 17.126.140. Section 17.126.160, Recording of Development Plan. (A Development Plan, as approved by the Board of County Commissioners, and associated documents, are also required to be submitted for recordation, at the applicant’s expense, upon any approval of the initial, or Phase I, PUD as well.)

• • • • • • • • •

The Final Development Plan or Plans referenced in this condition may, in the discretion of the Board of County Commissioners, be considered an amendment to the Development Plan approved herein and, if so determined, the same shall be processed and considered in accordance with the provisions of Section 17.126.170 of the Pueblo County Code. b) Permit(s) pursuant to Pueblo County’s Regulations for Areas and Activities of State and Local Interest (1041 Permit), for any activity within the Colorado Clean Energy Park PUD which meets any criterion to require a 1041 Permit. Any use or activity not specifically preempted by federal regulations, as determined by the Pueblo County Attorney’s Office, shall be subject to Pueblo County’s 1041 Permitting process. The applicant or its designee shall be responsible for the preparation and submission of any required 1041 Permit applications prior to initiation of any such activities. Consideration of any such 1041 applications shall be consistent with the provisions of Chapter 17, Division II of the Pueblo County Code. It shall be the sole discretion of the Board of County Commissioners as to

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whether any required hearing can be combined with other hearings that may be necessary. c) Other permits and/or approvals as required by law, regulation, or statute, including, but not limited to, federal government agencies (Nuclear Regulatory Commission, Federal Aviation Administration, Federal Energy Regulatory Commission, Environmental Protection Agency), State of Colorado agencies (Colorado Department of Public Health and Environment, Office of the State Engineer), Pueblo County Department of Public Works, Pueblo City-County Health Department. 3. Any existing uses (e.g., agricultural, farming, ranching, residential) on the Colorado Clean Energy Park PUD site shall be allowed to remain during the applicant’s processing of the PUD through the proposed Phases I and II. To continue these existing uses (if any), the uses shall be identified and delineated in required Final Development Plans, as applicable. 4. The approval granted herein shall not serve as the basis for an inference or a presumption that required further approvals will be granted. Any required further approvals shall be subject to the discretion of the Board of County Commissioners acting pursuant to and in accordance with the procedures and standards set forth in the Pueblo County Code. STAFF RECOMMENDATION, APPLICANT’S REQUESTED DEFERRALS, VARIANCES, WAIVERS Below are each of the applicant’s requested deferrals, variances, and waivers, with staff recommendation in bold text following each: 1. Variance of Section 17.126.040, Submittal Requirements, to allow deferral to the first 24 months of Phase II of the submission of i) those parts of the Development Plan Submittal Requirements set forth in 17.126.040 B. 1. d. through m., the map anticipated in said submittal requirements, and ii) Submittal Requirements set forth in 17.126.040 C. 2. and 3 and the map anticipated in said submittal requirements.
As described in Condition of Approval No. 2. a., above, staff recommends approval of this variance/deferral, consistent with the applicant’s timeframe where applicant shall submit required materials, consistent with the PUD regulations (Chapter 17.126 of the Pueblo County Code), within 24 months of beginning “Phase II” of the applicant’s proposal. Phase II shall begin within 30 months of initial PUD approval. Staff further recommends that Pueblo County may, at its sole discretion, initiate rescission of the phased Planned Unit Development should the applicant or its designee fail to meet the timeline as outlined above.

2. Variance of Section 17.128.060 to reduce cost upon filing the PUD Application to $100.00 and defer payment of other costs and fees as provided above in Paragraph I, Phase II.
Staff recommends denial of this variance request, and further recommends the applicant pay all Pueblo County’s direct costs associated with review of this PUD

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application, whether or not the Project moves into Phase II. The applicant shall pay for both Phase I and Phase II of the Colorado Clean Energy Park PUD, an amount necessary to cover costs of reviewing and processing the application, including costs of copying, mailings, publications, labor, overhead and retention of consultants, experts and attorneys that the County deems necessary to advise it on the application package. Costs associated with Phase I shall be paid prior to recordation of an approved Development Plan. The applicant shall be required to deposit with Pueblo County an initial fee of $10,000.00 in conjunction with submission of the Phase II information. The actual costs incurred by the County to process the application shall be deducted from the application fee. The Director of the Department of Planning and Development shall keep an accurate record of the actual time, and other costs, required for processing the application. If the balance of fees falls below a minimum balance established by the Director, additional billings shall be made to the Applicant commensurate with the additional costs incurred by the County. The County may cease processing the application, or any particular part or Phase thereof, pending receipt of additional installments.

3. Include within Permitted Uses within Section 17.126.020 all forms of energy production and storage and support facilities with the exception of coal-fired electric plants.
Power plants or electrical generation facilities are not prohibited or excluded under Section 17.126.020 and it is not necessary to specifically include these uses.

4. Modification of Design Standards set forth in Section 17.126.130 for all site, design, construction, or other applicable requirements to comply with design, construction, or other applicable requirements to comply with Federal law and regulations dealing with the site location, design, and construction of nuclear power plants.
Staff recommends modification of the Design Standards within Section 17.126.130 only for facilities that are subject to preemption by federal law and regulations, as determined by the Pueblo County Attorney’s Office. Development within the Colorado Clean Energy Park PUD not preempted shall conform to the Design Standards within Section 17.126.130.

5. Variance for maximum height of structures as set forth in Section 17.126.030 D. (buildings/structures shall not exceed 60 feet in height, telecommunications towers may be permitted to a height of 200 feet, at the discretion of the BOCC) to allow structures to be 300 feet in height to accommodate a containment dome for nuclear power plants and 350 feet in height for wind towers and communications towers.
Staff recommends approval of a variance of the height standards within Section 17.126.030 D. as needed to comply with necessary engineering design standards for nuclear facilities. Structures or facilities not directly associated with an approved, permitted nuclear facility are subject to review on a case-by-case basis during required review of Final Development Plans, 1041 Permits, or other County permit processes, as applicable, and may exceed the height limitation standards within Section 17.126.0230 D., subject to approval by the Board of County Commissioners.

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6. Variance for noise standard to be no more than 55 decibels of noise within 3,000 feet of any structure not related to wind generation.
There is no noise standard, per se, in the PUD Regulations or the County Zoning regulations. However, with any required Final Development Plan or 1041 Permit, noise standards may be addressed and restrictions imposed.

7. Variance of Section 17.126.150 to allow the property to revert back to its zoning as of the PUD Application associated with the PUD Development Plan if a) at the conclusion of Phase I it is determined that the land is not suitable for clean energy production as determined by the Applicant or b) at the conclusion of Phase 2 of the PUD, the Nuclear Regulatory Commission fails to issue a Permit for construction of a nuclear power plant.
Staff recommends approval of this proposal/variance, allowing the PUD site to revert back to the existing A-1, Agricultural zoning as described within the applicant’s proposal, if it is determined the site is not suitable for energy production, or if the NRC fails to issue a Permit for the nuclear facility.

8. Variance of duration of Approval as set forth in Section 17.128.040 to provide that if Phase I is completed within thirty months of approval, Phase II may be completed within seventy-two months (six years) of approval. Phase III may be completed within one hundred thirty two months (eleven years) of approval.
Staff recommends approval of this variance/proposal as described in the applicant’s proposal. Further, Pueblo County may, at its sole discretion, initiate rescission of the phased Planned Unit Development should the applicant or designee fail to meet the timeline outlined above.

9. Variance of Section 17.126.040 to accept the submittals set forth in paragraph IV hereof and attached to the Development Plan as satisfying the Submittal Requirements sufficient to proceed with the PUD Application.
Staff recommends acceptance of the submittal as proposed, consistent with and subject to all terms and conditions as approved by the Board of County Commissioners. The applicant has also included, within the “Deferrals, variances and waivers” request, the fact that there are five parcels surrounded by the Energy Park lands. The applicant notes “The Applicant is in contact with these owners and hopes to acquire these parcels and add them to the legal description in the future.” Staff recommends these parcels be excluded from the Colorado Clean Energy Park PUD, and remain in the current A-1, Agricultural Zone District. If, at some point in the future these parcels are to be included within an approved PUD, an amendment to the PUD shall be required, subject to review and approval by the Board of County Commissioners.

VESTING OF DEVELOPMENT RIGHTS In conjunction with the approval of the phased Planned Unit Development, the applicant has requested the right to develop the land as an “Energy Park” and for that right to be “vested.” Chapter 17.128 of the Pueblo County Code, Vested Property Rights, provides as follows:

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17.128.020 Definitions. A. "Site Specific Development Plan" means a map, plat, plan or other document but only as are more particularly described below, including all terms and conditions thereof or which are incorporated by reference which also describes with reasonable certainty the type and intensity of use permitted for a specific parcel or parcels of land: 1. Final Subdivision Plat, as that term is used, referenced and defined in the Pueblo County Subdivision Regulations as approved by the Board of County Commissioners; or 2. Planned Unit Development Plan as that term is used, referenced and defined in Section 17 of the Pueblo County zoning resolution as approved by the Board of County Commissioners; or 3. Such other map, plat or other document wherein a specific written agreement designating the same as a "site specific development plan" has been executed between the Board of County Commissioners and the property owner for a specific project or development; or 4. No other map, plat, other document or approval of any nature submitted and/or obtained pursuant to the Pueblo County Zoning Resolution and/or the Pueblo County Subdivision Regulations shall constitute a site specific development plan. B. "Vested real property right" means the right to undertake and complete the development and use of property under the terms and conditions of a site specific development plan. Staff has no objection to Pueblo County conferring a vested property right upon the PUD development plan if the PUD is approved as long as it is abundantly clear to the Board of County Commissioners and to the applicant that the right being vested is a limited and conditional right and the act of vesting in no way transforms that right into an unlimited and/or unconditional right. Here, if the PUD is approved and staff’s recommended conditions are imposed, then the development plan upon which vesting would be conferred is clearly subject to the requirements that the plan be finalized in a far more detailed fashion and that the final development plan would be subject to the review and approval of the Board of County Commissioners. Vesting, as that term is used in State law and in the Pueblo County Code does not change the nature of the right. It simply protects the right of the applicant to proceed to develop the land in accordance with the limited right approved which, in this instance, would require far more work prior to a final approval which would then allow the applicant to obtain building permits, and the like. 1041 PERMITTING REQUIREMENTS Permits required pursuant to Pueblo County’s Regulations for Areas and Activities of State and Local Interest (1041 Permit) would apply to many of the proposed energy generation facilities, as well as associated transmission lines, substations, water delivery and storage systems and facilities, water and sewer systems, gas lines, etc. It may be the case that 1041 Permits required for most or all of the facilities and infrastructure directly associated with any nuclear plant would be preempted by federal permit

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approval processes. However, staff has not received comment from the Nuclear Regulatory Commission (NRC), and the scope and specifics of such preemption is not clear at this time. The applicant is advised that any activities, uses, or facilities not specifically preempted (as determined by the Pueblo County Attorney’s Office) are subject to 1041 Permit processes and reviews. Staff’s recommendation is not consistent with the applicant’s proposal as far as processing any needed 1041 Permits. The applicant has proposed that if it is determined that a 1041 Permit is required for any aspect of the Project, the Board of County Commissioner’s determination regarding the 1041 Permit shall be simultaneous with the hearings/approvals of Phase II of the Project. The Board of County Commissioners should not commit itself to hearing what may be numerous 1041 Permit applications “simultaneously” with hearings on Phase II of the Project. The 1041 regulations are separate and distinct land use regulations with different procedures, findings of fact and approval guidelines than Planned Unit Developments. COMPREHENSIVE PLAN AMENDMENT The Colorado Clean Energy Park PUD site is currently designated “Rural Ranch” on the Future Land Use map in the Pueblo Regional Development Plan. Rural Ranch is described in the Plan as, “sparsely populated acreage devoted to traditional ranching operations, large, rural land holdings and (35 acre) “ranchettes.” This is not consistent with the applicant’s proposed Energy Park. Conformance to the Comprehensive Plan is specifically addressed within the PUD Regulations, Section 17.126.140, Consideration for Rezoning, J. as follows: “As set forth in C.R.S. 24-67-104 (1)(f), a finding by the County that such PUD District rezoning request is in general conformity with the Pueblo County Comprehensive Plan or any amendment thereto is required.” With that, the applicant has submitted an application to amend the Comprehensive Plan. This amendment application (CPA 2011-001) is scheduled for review by the Pueblo County Planning Commission on February 22, 2011, and by the Pueblo Area Council of Governments (PACOG) on February 24, 2011. The City of Pueblo Planning and Zoning Commission is scheduled to review the proposed amendment on April 13, 2011. AGENCY COMMENTS The State of Colorado Division of Water Resources has provided comments, attached as Exhibit 3. As no water information has been submitted at this time, the Division notes the development will require “engineering and water studies detailing planning needs and sources for the water.” The Division has “no comment at this time as there is insufficient information on which to form an opinion.” The State of Colorado Division of Wildlife (DOW) has provided comments, attached as Exhibit 4. The DOW notes their comments reflect the general nature of the Phase I inquiry, and requests the opportunity to comment on specific details of Phase II as they become known. The DOW discusses several potential impacts to various species of wildlife with the proposal.

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The State of Colorado Department of Public Health and Environment, Air Pollution Control Division, states “The Division has reviewed the information sent and finds that there will be no negative impacts on air quality from this project or permit.” Planning staff notes there are likely to be air quality permits associated with any gas fired power plant proposed for the Project. (Exhibit 5.) STAFF COMMENTS The Colorado Clean Energy Park PUD proposal is, as acknowledged by the applicant, a unique concept. It is unlike any land use application in staff’s previous experience. The typical review of the proposed uses, with site specific review and analysis, are not possible on a 37.5 square mile area where the location of the proposed uses have not been identified. Overall land use impacts, with consideration of environmental factors, water, wildlife, vegetation, traffic, access, drainage, impact to agricultural uses, etc., will be examined prior to any development being permitted on the site. Staff’s recommendation for the PUD is made from the point of view that there is a lengthy, highly detailed, technical review of the site that will be needed to determine whether the Energy Park is feasible. Any nuclear facility is subject to a lengthy, in-depth review and permitting process by the Nuclear Regulatory Commission (NRC), which includes public involvement and public hearings. Any energy production facilities not specifically covered under NRC permitting reviews are subject to review and approval of a Permit under Pueblo County’s 1041 Regulations or Pueblo County’s Zoning Regulations. The PUD site is rural and undeveloped, for the most part, with no County roads or public access points available for the majority of the property. According to the County Geographic Information System (GIS), there is, as would be expected in an area of this size, a variety of terrain, topography, drainages and geologic features. As described within this report, detailed and careful technical review of the site is required to determine the feasibility of the Energy Park. Attachments: Exhibit 1 – Applicant’s Submittal, PUD Application Exhibit 2 – GIS Map, PUD Site Exhibit 3 – Comments, State Division of Water Resources Exhibit 4 – Comments, State Division of Wildlife Exhibit 5 – Comments, CDPHE, Air Pollution Control Division

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EXHIBIT 1

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EXHIBIT 2

EXHIBIT 3

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EXHIBIT 4

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EXHIBIT 5

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